Different Writs and their Importance

 

By: Parveen Kaswan ( Add on Facebook for more updates)

 

Writ of Prohibition:

A writ of prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a Judge from hearing a case in which he is personally interested.

The term “inferior courts” comprehends special tribunals, commissions, magistrates and officers who exercise judicial powers, affecting the property or rights of the citizen and act in a summary way or in a new course different from the common law. It is well established that the writ lies only against a body exercising public functions of a judicial or quasi- judicial character and cannot in the nature of things be utilised to restrain legislative powers.

These Writs are issued as “alternative” or “peremptory.” An alternative Writ directs the recipient to immediately act, or desist, and “Show Cause” why the directive should not be made permanent. A peremptory Writ directs the recipient to immediately act, or desist, and “return” the Writ, with certification of its compliance, within a certain time.

The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into decision, writ will not lie.

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 Writ of Certiorari

It is a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court’s decision.  Appellate review of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court. A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in the inferior court.

However, unlike a writ of prohibition, superior courts issue writs of certiorari to review decisions which inferior courts have already made. The writ of prohibition is the counterpart of the writ to certiorari which too is issued against the action of an inferior court. The difference between the two was explained by Justice Venkatarama Ayyar of the Supreme Court in the following terms:

“When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition and on that an order will issue forbidding the inferior court from continuing the proceedings.

On the other hand, if the court hears the cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari and on that an order will be made quashing the decision on the ground of want of jurisdiction.”

Writ of Mandamus

A writ of mandamus is an order issued by a superior court to a lower court or other entity commanding the lower court, corporation or public authority to perform or not perform specific acts. Rules applying to a mandamus include: The requested act must be used as a judicial remedy. The act must conform to statutorily-authorized provisions. The write must be judicially enforceable and protect a legal right.  Three types of mandamus are utilized, depending upon the legal circumstances.

  • The alternative mandamus demands a defendant to appear before court, perform an act or show cause for not having done so.
  • The peremptory mandamus is used when a defendant fails to comply with an alternative mandamus and which is an absolute command for performance.
  • Third, the continuing mandamus requests an officer or authority to perform its activities expeditiously for an indefinite period of time in order to prevent a miscarriage of justice.

(Practical example is the case of the Kanchi Shankaracharya who got entangled in a criminal case. Looks like the police froze the accounts of the trust he runs and subsequently, the writ mandamus was filed and upheld by the Chennai High Court.)

Writ of Quo Warranto

The meaning of the term Quo Warranto is ‘by what authority’. The writ of quo warranto may be issued against a person holding a public office or governmental privilege. The issue of summon is followed by legal proceedings, during which an individual’s right to hold an office or governmental privilege is challenged.

The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. The writ is issued by the Court after reviewing the circumstances of the case. There are a few conditions which must be fulfilled for the grant of the writ of quo warranto India:

  • The concerned office must be a government unit or public office which performs public duties. Examples of such office members are advocate general, university officials, members of a municipal board.
  • The public office must have a real existence. It should be permanent and cannot be terminated.
  • A person against whom the writ of quo warranto is issued must have the real possession of the public office.
  • The writ shall be issued only when the public office is held by a particular person in an illegal manner

Habeas Corpus

It is an extraordinary remedy at law. Habeas corpus in Latin means  “may you have the body”) is a writ (legal action) which requires a person under arrest to be brought before a judge or into court. This ensures that a prisoner can be released from unlawful detention—that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner’s aid. This right originated in the English legal system, and is now available in many nations. These Writs are filed nearly everyday in nearly every jurisdiction.

 

 

 

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